Esdale v. State

• Decision Date: 06 January 1953
• Docket Number: 6 Div. 359
• Citation: 37 Ala.App. 48,68 So.2d 512
• Parties: ESDALE v. STATE.
• Court: Alabama Court of Appeals

Page 512

68 So.2d 512

37 Ala.App. 48

ESDALE v. STATE.

6 Div. 359.

Court of Appeals of Alabama.

Jan. 6, 1953.

On Rehearing Feb. 17, 1953.

Crampton Harris, Birmingham, for appellant.

Si Garrett, Atty. Gen., W. Emmett Perry, Sol., Birmingham, J. W. Arbuthnot, Asst. Atty. Gen., and Marvin Cherner, Birmingham, of counsel, for the State.

These charges were refused to defendant:

'7. The court charges the jury that if no demand was made upon defendant for the amount of money alleged to have been embezzled, you cannot convict defendant under count one of the indictment.

'8. I charge you, gentlemen of the jury, that the court will not presume or infer felonious intent.'

PRICE, Judge.

The indictment contained three counts charging (1) embezzlement; (2) false pretense; (3) grand larceny. The false pretense count was nol prossed on motion of the Solicitor. Conviction was for embezzlement, the jury assessing the value of the property embezzled at $65.20.

This verdict operated as an acquittal as to the larceny count. Brewer v. State, 83 Ala. 113, 3 So. 816; Cowart v. State, 16 Ala.App. 119, 75 So. 711. Defendant was sentenced to the penitentiary for a term of three years.

Appellant's first insistence is that the court erred in overruling demurrer to count one of the indictment. Said count is as follows:

'The Grand Jury of said county charge that, before the finding of this indictment, J. Esdale, alias Jim Esdale, alias James Esdale, whose Christian name is to the Grand Jury otherwise unknown, being at the time, the bailee, agent, clerk, employee, servant or apprentice of Dick Garth, did embezzle or fraudulently convert to his own use, or to the use of another, or did fraudulently secrete, with the intent to convert to his own use, or to the use of another sixty-five dollars and twenty cents in money, which came into his possession as such bailee, agent, clerk, employee, servant or apprentice.'

The indictment was in the language of the statute, except for the addition of the word 'bailee.' This alleged defect was not specifically pointed out by the demurrer. Flanigan v. State, 247 Ala. 642, 25 So.2d 685; Harris v. State, 248 Ala. 389, 27 So.2d 797.

Defendant's further contention that by the use of the word 'bailee' the indictment was rendered fatally defective and will not support the judgment of conviction, and the court erred in refusing the general affirmative charge, is likewise without merit.

Our courts hold that where an indictment consisting of one count contains charges in the alternative, with one or more of the alternatives good under the statute, and others in the alternative stating no offense, in the absence of appropriate grounds of demurrer, a general verdict will be referred to the good averments, and a judgment on conviction will be sustained. State v. Collins, 200 Ala. 503, 76 So. 445; Jackson v. State, 236 Ala. 75, 182 So. 83; Thomas v. State, 248 Ala. 415, 27 So.2d 793.

Therefore, conceding, which we do not, that the use of the word 'bailee' rendered the whole count bad on demurrer, the other alternatives were good under the statute, and no objection having been made on the trial, the indictment was not rendered void and is sufficient to support the judgment of conviction.

The evidence for the State rends to show that appellant, James Esdale, owns and operates the Bail Bond Company, acting as surety on bonds for persons charged with crime.

Dick Garth was arrested on October 15, 1949, charged with illegal possession of whiskey. Appellant made his appearance bond. About two weeks later Garth was convicted and fined fifty dollars by the Jefferson County Court of Misdemeanors. The case was passed to allow Garth time to pay the fine. Garth testified he did not then have the money to pay the fine, but he asked defendant to take care of it and defendant said he would and told Garth to bring the money as he could. Receipts were introduced from the Bail Bond Company showing Garth had paid by installment $33 for the bond fee, and $72.20 which the State contends was paid to defendant for the fine and costs.

The State contends further that the case involving Garth was passed several times from October 26, 1949, to January 27, 1950, when forfeiture was taken on Garth's appearance bond. The forfeiture and costs, amounting to $57.50, were paid by the Bail Bond Company on March 13, 1950. Garth had made a payment of $10 to defendant on January 24, 1950, three days before the forfeiture was taken against him, and although Dick Garth and his wife continued to visit defendant' place of business after the date of the forfeiture and continued to make payments for the purpose of paying off Dick Garth's fine, the defendant did not inform Garth of the forfeiture nor did he tell Garth his money had been used to pay the forfeiture. When the last payment of $5.20 was made on September 1, 1950, Garth was given a clear receipt and defendant told him to 'go on back home and don't let the Judge catch you any more.' No part of the money paid by Garth was ever applied to the payment of the fine. The original fine and costs were never paid.

Over objections and exceptions the State was permitted to introduce six witnesses who testified that defendant undertook to act for them in receiving payments in installments and paying off fines. Instead of paying the fines, in five of said instances the defendant used a part of the money paid to him in paying forfeitures and costs, and although he continued to receive payments from them after forfeitures were taken, they were not informed of the taking of the forfeitures nor were they informed their fines were still unpaid and outstanding. One of said witnesses, Odessa Stephens, testified she had paid to defendant or his agent a total of $100 in addition to the bond fee. Her fine and costs were paid by defendant but only amounted to $43.95.

In each instance the witness testified more money had been paid to defendant than was paid by him on forfeiture and costs.

Defendant contended he had been engaged in the bail bond business since 1931. During 1947 and up until the trial he had made about 3500 bonds each year. He made bail bonds in the various courts of Jefferson County and in other counties. About five per cent of the defendants for whom he made bond did not show up in court at all.

When the forfeiture was taken against Garth, he wrote Garth this letter:

'Your case in Judge Boner's court forfeited today. That will add $3.50 to your costs. There will be an alias warrant issue for your arrest, and additional expense will be incurred by my office because of this forfeiture. This matter is very important to you so you should pay your case off immediately, otherwise you are subject to be arrested and put back in jail at any time. You have $17.00 on deposit in our office as security on your bond. It will take $68.70 to pay your case off in full, so call at our office at once and get this matter straightened out.

'Yours truly,

'Bail Bond Company.'

After the letter was sent Garth came to the office and appellant explained to him 'in substance what was in the letter' and explained the difference between paying forfeiture and costs and fine and costs, and that his case was still open and he was subject to arrest. He told him what the expenses were on the forfeiture and Garth agreed to pay his case off.

On September 1, 1950, the occasion of Garth's last visit, appellant had the following conversation with him:

'I told him what the balance he owed was, which, of course, included the $25.00 that was added by reason of the forfeiture (expense). He had $15.00 in the office over and above the $57.50 that I had paid into court, which I explained to him; and it was, just he says, 'I'm going to pay $5.20. That is all I'm going to pay.'

'That of course, made about $15.00 that he paid in; he had that $10.00 up there then. I told him it was going to take $25.00 in all, less what you got in the office, about $10.00, ($5.20) and that he just kept on. I told him to give me the $5.20, and, 'I will write you a receipt in full, or anything you want. Get out of my office. Get going and don't come back; and don't let them catch you any more because I am not going to get you out of jail any more.''

This was the last time appellant saw Garth until he saw him in court at the trial.

He further contends that he had in his employ men who worked on forfeitures and one man, who worked continually on forfeitures. These men were sent to find Garth, but did not succeed. His expense in this connection was $25.

Garth's bond fee was not paid in full until January 11th and on the day the forfeiture was taken he had only paid appellant $17 on fine and costs or forfeiture and costs and on the day the forfeiture was made final he had paid to appellant a total of $37 on fine and costs or forfeiture and costs. The appellant paid into court on that day $57.50 for forfeiture and costs. He contends that Garth was due to pay to defendant $81.75, being $57.75 for forfeiture and costs, and $25 for expenses incurred on account of the forfeiture.

Defendant introduced in evidence a contract between Dick Garth and Bail Bond Company, dated October 15, 1949, containing, among others, the following provisions:

'The undersigned further agrees, that in addition to the bond fee agreed to herein, they will pay any and all charges and expenses that are necessary for the proper carrying out of this contract; that they will pay all final forfeitures; all forfeiture cost; all fines and costs that may be assessed against the defendant, whether the same are paid by the Bail Bond Company, or whether said fines and costs are due and payable by the defendant; that the undersigned will pay all expenses that are necessary to cause the attendance of the defendant in court; that the undersigned will pay all expenses, rewards, and other necessary expenses in apprehending the defendant, whether said defendant forfeits said bail bond or, in...